Relist Watch

John Elwood reviews Monday’s relists.

It’s finally June – the court’s home stretch. The justices will get together only a few more times to decide which cases to grant before they part ways for the summer. But so much time has been wasted obsessing over a famous guy using a fake word that it has distracted attention from another story in the news, involving an important decision made for dubious reasons that many will second-guess.

Now on to the things that really matter. First, the old business: The court granted the relist involving Ohio’s effort to prune old voter rolls. But it denied the relist involving Ohio’s effort to obtain summary reversal in a habeas case involving a faulty jury instruction in a murder trial. All of the other cases are back again this week, but there is at least some movement among the serial relists. In the knot of cell-site information cases, the court called for a response (“CFRd”) in Rios v. United States, 16-7314, the only case among the group in which the respondent had not yet filed a brief. Rios is the lone case that involves “real-time” cellular-phone location data rather than historical data. The response isn’t due until June 26. Even without an extension, such a late due date would ordinarily mean that the case won’t be discussed until the Long Conference on September 25. So this CFR means the court will either have to split off Rios separately or hang on to all the cell-site data cases for the whole summer. It’s unclear to me what the court will do; prediction is very difficult, especially about the future. But one thing I can predict about the serial relists is that when the court is finally done with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, now on its 11th relist, There Will Be Ink.

That brings us to this week’s new relists. If you like voting cases (if, say, your name is Rick), well, you’re in luck. The court has relisted Harris v. Cooper, 16-166, North Carolina v. Covington, 16-649, and – wait, we already did this one – North Carolina v. Covington, 16-1023. All three are appeals (not certiorari-jurisdiction cases), meaning the court can’t just deny them – it has mandatory jurisdiction and can either summarily affirm, summarily reverse or note probable jurisdiction. The court has been holding all three for last week’s big decision in Cooper v. Harris. In Cooper v. Harris, the court upheld a three-judge district court’s decision invalidating a couple North Carolina’s congressional districts on the ground that they were the product of unconstitutional racial gerrymandering.

Harris v. Cooper, 16-166, involves what happened after the district court invalidated those districts. To guide the drawing of the remedial map, legislative leaders adopted rules that required the resulting map to preserve the state’s existing partisan balance of 10 Republican and three Democratic seats. Challengers argued that the new map was an unconstitutional partisan (not racial) gerrymander. Such claims face an uphill battle under Vieth v. Jubelirer, in which a four-justice plurality concluded that no justiciable standard exists to determine whether a districting plan constitutes an illegal partisan gerrymander, and Justice Anthony Kennedy concurred in the judgment, saying that “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.” The district court in Harris denied relief, saying its “hands appear to be tied” because existing Supreme Court law does not permit partisan gerrymandering claims. In the Supreme Court, appellants David Harris and Christine Bowser argue that the district court erred in holding that the lack of discernible standards prevented it from striking down the plan, because the plan’s architect admitted it was designed to elect as many Republicans as mathematically possible. The court has ordered the parties to submit supplemental briefs addressing the appellants’ standing and the court’s appellate jurisdiction.

North Carolina v. Covington, 16-649, seeks review of a three-judge district court’s decision invalidating North Carolina’s state legislative map as the product of unconstitutional racial gerrymandering. And North Carolina v. Covington, 16-1023, asks whether the same district court exceeded its jurisdiction by then partially invalidating the results of the 2016 election held using the old districts, ordering off-year special elections in substantial parts of the state, and doing all of that after North Carolina had already filed its notice of appeal.

Our last new relist, Virginia v. LeBlanc, 16-1177, may sound like a voting case, what with a state name in the caption and all. But it’s the other kind of state-on-top Supreme Court case: the kind seeking summary reversal of an adverse habeas decision. Recall that Graham v. Florida held that sentencing a juvenile to life in prison without parole for crimes other than murder violates the Eighth Amendment’s ban on cruel and unusual punishment. As all even mildly well-read lawyers know, the Virginia Supreme Court held in Angel v. Commonwealth that Virginia’s sentencing laws comply with Graham because juvenile nonhomicide offenders are generally eligible for conditional release at age 60. LeBlanc asks whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act by granting relief based on its conclusion that Angel was an objectively unreasonable application of Graham v. Florida. The state asserts that there is a circuit split over whether a sentence qualifies as a “life sentence” under Graham if offenders are eligible for parole at age 60.

That’s all for this week. Tune in next week for more creepy hyperlinks, clunky pop-culture references and random references to distant relatives.

Thanks to Bryan U. Gividen for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists

Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the Fourteenth Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25 conference)

 

North Carolina v. Covington, 16-649

Issues: (1) Whether any of the district court’s extensive findings of fact regarding the 28 racially gerrymandered legislative districts at issue here are clearly erroneous, and (2) whether the district court correctly applied Alabama Legislative Black Caucus v. Alabama in holding that race predominated in the drawing of 28 legislative districts in North Carolina, and correctly applied the Supreme Court’s rulings in Johnson v. De Grandy and Bartlett v. Strickland in holding that those districts were not narrowly tailored to the compelling governmental interest of compliance with the Voting Rights Act.

(relisted after the May 25 conference)

 

North Carolina v. Covington, 16-1023

Issues: (1) Whether the district court had jurisdiction to expand upon its previously ordered remedy after the state filed its notice of appeal; and (2) whether the district court exceeded the bounds of its equitable discretion by partially invalidating election results, abrogating several provisions of the state constitution and ordering a special election – all without any discussion of the competing equities.

(relisted after the May 25 conference)

 

Virginia v. LeBlanc, 16-1177

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act in holding that the Virginia Supreme Court’s decision in Angel v. Commonwealth was an objectively unreasonable application of Graham v. Florida, thereby creating a split with Virginia courts over the validity of Virginia’s parole regulations, and a split with other jurisdictions over whether parole eligibility at age 60 constitutes a life-without-parole sentence.

(relisted after the May 25 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment. 

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28, May 11, May 18 and May 25 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18 and May 25 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18 and May 25 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18 and May 25 conferences)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18 and May 25 conferences)

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